Opinion
F086240
02-16-2024
THE PEOPLE, Plaintiff and Respondent, v. KIRK TREMAINE HARRIS, Defendant and Appellant.
Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County No. CF06903074 . Jonathan B. Conklin, Judge.
Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
PENA, J.
INTRODUCTION
In July 2006, defendant Kirk Tremaine Harris pled guilty to felony possession of a controlled substance (Health &Saf. Code, § 11350, subd. (a); count 1) and possession of a smoking device (id., § 11364; count 2); he admitted he suffered four prior prison terms pursuant to Penal Code former section 667.5, subdivision (b) and four prior strike offenses, that included violations of Penal Code sections 209 and 211 in Los Angeles Superior Court, 1980, No. A197146. In May 2022, defendant filed a petition pursuant to Penal Code section 1170.18 seeking to reduce his 2006 Health and Safety Code section 11350, subdivision (a) felony conviction to a misdemeanor. The court denied defendant's petition after concluding he was ineligible for relief based upon his 1980 conviction for kidnapping for robbery (Pen. Code, § 209, subd. (b)), which is a "super strike."
Defendant appeals from the denial of his petition for resentencing under Penal Code section 1170.18. He asserts, in People v. Harris (1990) 226 Cal.App.3d 492, our court stated his 1980 kidnapping for robbery conviction was unconstitutional and we concluded he could not be sentenced to enhancements based upon that conviction. He now asserts, this alleged invalid "super strike" should not render him ineligible for relief; rather, his felony possession conviction should be reduced to a misdemeanor. Alternatively, he contends the order denying his petition should be reversed and the matter remanded to allow the People to demonstrate he has a super strike conviction from 1980 that was not invalidated-a conviction other than the one alleged in the information in this case and identified by the probation officer. The People respond defendant fails to conclusively establish the court erred in determining he was ineligible for relief based upon his prior "super strike" conviction.
We affirm the court's order.
FACTUAL AND PROCEDURAL HISTORY
Charges
In May 2006, defendant was charged with felony possession of a controlled substance (Health &Saf. Code, § 11350, subd. (a); count 1) and misdemeanor possession of a smoking device (id., § 11364; count 2). It was also alleged he had suffered four prior strike offenses pursuant to Penal Code sections 667, subdivisions (b) through (i), and 1170.12, subdivisions (a) through (d)-two December 10, 1980, convictions for violations of Penal Code sections 209 and 211 in Los Angeles Superior Court, No. A197146, a July 16, 1986, conviction for a violation of Penal Code section 211 in Fresno Superior Court, No. 349764-1, and a November 7, 1988, conviction for a violation of Penal Code section 211 in Fresno Superior Court, No. 383698-8. It was also alleged he suffered four prior prison terms pursuant to Penal Code section 667.5, former subdivision (b) with regard to the same prior convictions and for a December 23, 1998, conviction for a violation of Health and Safety Code section 11350 in Fresno Superior Court, No. 612044-8.
Plea and Imposition and Subsequent Revocation of Probation
On July 24, 2006, defendant pled guilty to the charges-felony possession of a controlled substance (cocaine base) (Health &Saf. Code, § 11350, subd. (a); count 1) and possession of a smoking device (id., § 11364; count 2)-and he admitted he had suffered the four alleged prior strike offenses and prior prison terms (Pen. Code, § 667.5, former subd. (b)). The court granted the defense motion made pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, and struck the four prior strikes based upon the age of the strikes, its conclusion that they did not involve violence, defendant's age, and the small amount of drugs. The court suspended sentence, and imposed probation. Defendant was ordered to complete a six-month inpatient program and to attend 12 months of aftercare programing.
On March 16, 2007, the court revoked defendant's probation after he admitted possessing marijuana, and it sentenced him to the midterm of two years' imprisonment for the July 24, 2006, felony conviction for possession of a controlled substance (Health &Saf. Code, § 11350, subd. (a)). The court imposed one year for each of the four prison prior enhancements, but it then struck the sentence for each of those enhancements. The court also sentenced defendant to time served for the misdemeanor count alleged in count 2.
Petitions for Redesignation of Sentence Under Proposition 47
On May 18, 2022, defendant filed a petition for redesignation of his July 24, 2006, felony conviction for possession of a controlled substance (Health &Saf. Code, § 11350, subd. (a)) to a misdemeanor pursuant to Proposition 47. He asserted he qualified for redesignation of the conviction as a misdemeanor and that there were no "disqualifiers present under Penal Code section 1170.18(b)(1)-(3) and (i)." Accordingly, he asserted, the felony offense should be redesignated as a misdemeanor pursuant to Penal Code section 1170.18, subdivisions (f)-(g). He asserted he was in custody in state prison and asked that the public defender be appointed to represent him.
On October 3, 2022, the court held a hearing on defendant's application for reduction of his felony conviction pursuant to Proposition 47. At the hearing, defense counsel stated defendant filed the application on his own. "Unfortunately for [defendant], [the prosecutor] was able to confirm a prior suspicion that [defendant] was convicted of a [Penal Code section] 209 pursuant to a robbery; kidnapping for the purpose of robbery." The prosecutor confirmed it was "an old conviction from 1980 out of Torrance. It is a 209(b)." He asserted that falls under a "super strike designation." The court denied defendant's Proposition 47 petition on that basis, concluding defendant was ineligible for relief. The court stated it had the change of plea form which showed "those priors were admitted."
DISCUSSION
Defendant now challenges the trial court's denial of his Proposition 47 petition, asserting the alleged super strike conviction that was the basis of the denial was previously declared to be an unconstitutional conviction. Thus, the court erred in denying his petition for relief. We affirm the court's order.
I. Proposition 47
On November 4, 2014, voters passed Proposition 47, which took effect the following day. (People v. DeHoyos (2018) 4 Cal.5th 594, 597.) Proposition 47 redefined several common theft- and drug-related felonies as either misdemeanors or felonies depending on the offender's criminal history. (People v. DeHoyos, supra, at p. 597.) Possession offenses of certain controlled substances (Health &Saf. Code, §§ 11350, subd. (a), 11377, subd. (a)) may qualify as redefined offenses. (DeHoyos, at p. 597.) While the redefined offenses are misdemeanors by default, "they remain felonies for offenders who have previously been convicted of certain serious or violent crimes colloquially known as 'super strikes' (see Pen. Code, § 667, subd. (e)(2)(C)(iv)(I)-(VII); see also People v. Valencia (2017) 3 Cal.5th 347, 351 &fn. 3), or of a crime that requires registration as a sex offender (see Pen. Code, 290, subd. (c))." (DeHoyos, at pp. 597598.)
Any serious or violent felony offenses punishable in California by life imprisonment or death is a "super strike" pursuant to Penal Code section 667, subdivision (e)(2)(C)(iv)(VIII). Notably, as defendant acknowledges, kidnapping to commit robbery is punishable in the state prison for life with the possibility of parole and, thus, a "super strike" offense. (Pen. Code, § 209, subd. (b)(1); see People v. Zamarippa (2016) 247 Cal.App.4th 1179, 1182-1184 [defendant was ineligible for reclassification of felony conviction under Health &Saf. Code. § 11350 to misdemeanor because he was convicted of kidnapping to commit a robbery, a "super strike," before he filed application for Prop. 47 relief].)
Proposition 47 provides a path to relief for persons who have already completed a sentence for a covered offense. (People v. DeHoyos, supra, 4 Cal.5th at p. 599.) Such a person "may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors." (Pen. Code, § 1170.18, subd. (f).) Such applications must be filed by November 4, 2022, absent good cause to file at a later date. (Id., subd. (j), as amended by Stats. 2016, ch. 767, § 1, p. 5314, eff. Jan. 1, 2017.) As is true of Proposition 47's other provisions for reducing a felony to a misdemeanor, no relief is available to a person who has previously been convicted of a super strike or an offense requiring registration as a sex offender. (Pen. Code, § 1170.18, subd. (i).) If such an applicant satisfies the statutory requirements, the court must designate the felony offense as a misdemeanor. (Id., subd. (g).) No hearing is required unless the applicant asks for one. (Id., subd. (h).)
"'Proposition 47 ... requires the petitioning defendant to establish his or her initial eligibility for relief-which, under Proposition 47, is a prior felony conviction that would have been a misdemeanor if Proposition 47 had been in effect at the time of the offense. [Citations.] "_ Proposition 47 then allows the prosecution the opportunity to oppose the petition by attempting to establish that the petitioning defendant is ineligible for resentencing. [Citation.] This may be accomplished either (1) by rebutting the petitioning defendant's evidence . . . or (2) by demonstrating that the petitioning defendant suffered a conviction of one or more of the offenses specified in section 1170.18, subdivision (i)."'" (People v. Fernandez (2017) 11 Cal.App.5th 926, 932; see People v. Sledge (2017) 7 Cal.App.5th 1089, 1094.) "The ultimate burden of proving section 1170.18 eligibility lies with the petitioner." (People v. Romanowski (2017) 2 Cal.5th 903, 916.) "It is the People's burden to establish the existence of a disqualifying prior conviction by a preponderance of the evidence." (Fernandez, at p. 932; accord, Sledge, at p. 1095.)
The order denying defendant's "eligibility for Proposition 47 relief '"'is presumed correct; all intendments are indulged in to support it on matters as to which the record is silent, and error must be affirmatively shown.'" [Citation.] In addition, we must "'view the record in the light most favorable to the trial court's ruling.'"'" (People v. Simms (2018) 23 Cal.App.5th 987, 994; see People v. Johnson (2016) 1 Cal.App.5th 953, 960.) "But '"[w]here the trial court applies disputed facts to such a statute, we review the factual findings for substantial evidence and the application of those facts to the statute de novo."'" (Simms, supra, at p. 994; People v. Sledge, supra, 7 Cal.App.5th at p. 1095.) II. Analysis
Defendant argues his alleged "super strike" conviction-the 1980 kidnapping conviction pursuant to Penal Code section 209 in Los Angeles Superior Court, No. A197146 (he was also convicted of robbery in that case (§ 211))-was invalidated in a 1990 appeal, People v. Harris, supra, 226 Cal.App.3d 492. He asserts, in that case, our court declared his 1980 kidnapping for robbery conviction unconstitutional and concluded he could not be sentenced to enhancements based upon that conviction. He also notes in the unpublished opinion, People v. Harris (Aug. 9, 2012, F061768) , our court found a constitutionally invalid 1980 conviction was erroneously used for impeachment and to increase defendant's punishment. Thus, he argues this "super strike" should not render him ineligible for relief; rather, his felony Health and Safety Code section 11350, subdivision (a) possession conviction should be reduced to a misdemeanor. He concedes it is "not entirely clear" the 1980 conviction discussed in Harris, supra, 226 Cal.App.3d 492 is the same conviction constituting the super strike in this case as Harris did not identify the case number of the invalid 1980 conviction or indicate it arose out of Los Angeles County. But, he asserts, the probation officer's report only reflects the 1980 convictions arising from Los Angeles Superior Court, No. A197146. Alternatively, he contends the order denying his application for relief should be reversed and the matter remanded to allow the People to demonstrate defendant has a super strike conviction from 1980 that was not invalidated-a conviction other than the one alleged in the information in this case and identified by the probation report. The People respond defendant not only "fail[ed] to prove that he had not suffered a prior super strike conviction, but his attorney expressly admitted that he had suffered such a conviction and that the conviction made him ineligible for resentencing. As such, the trial court correctly found that [defendant] was ineligible for resentencing based upon the facts" before it. Additionally, they contend it is possible the 1980 conviction relied upon by the trial court in this matter is different from the invalid conviction discussed in People v. Harris, supra, 226 Cal.App.3d 492, given that the court did not refer to the case number in the opinion. They further assert, "[t]he fact that the December 10, 1980 convictions in case number A197146 were included in the 2006 charging document, along with the fact that [defendant] admitted that he had suffered the convictions when he entered his 2006 guilty plea, indicates the possibility that the convictions [he] suffered in that case are not the same conviction that this Court discussed in its 19[9]0 opinion as having been invalidated." We affirm the court's order.
This appeal revolves around whether the "super strike" conviction the court relied upon in concluding defendant was ineligible for relief was previously invalidated such that it should not have been considered in determining defendant's eligibility for relief under Proposition 47. The parties do not dispute defendant was the appellant involved in People v. Harris, supra, 226 Cal.App.3d 492, a case in which a jury had convicted defendant of robbery in 1988. (Id. at p. 494.) In that case, the trial court imposed the aggravated term of five years, with a five-year enhancement based upon a prior robbery conviction and a one-year enhancement for a prior prison term for grand theft. (Ibid.) Our court had previously "vacated the sentence and remanded for resentencing because in stating its reasons for imposing the aggravated term the trial court improperly relied upon a prior serious felony conviction (robbery/kidnap) which it had stricken for the purpose of enhancement because appellant had received no assistance of counsel and no constitutional advisements at the time of his conviction." (Ibid., fn. omitted.) "On remand, the trial court again sentenced appellant to the aggravated term with a five-year enhancement for having previously been convicted of a serious felony (Pen. Code, § 667, subd.. (a)), and a one-year enhancement for having previously served a prison term for a serious felony conviction (Pen. Code, § 667.5, [former] subd. (b))." (Ibid.)
Our court noted, "[i]n the present action the trial court found the 1980 conviction for robbery with a firearm unconstitutional because appellant was denied his right to counsel." (People v. Harris, supra, 227 Cal.App.3d at p. 494.) In a footnote, the Harris court noted "the prior opinion and the parties refer to this [prior] conviction as a robbery/kidnap" but the court's "review of the record reflects it is a conviction for robbery with the use of a firearm." (Id. at p. 494, fn. 1.) The one-year prior prison term enhancement was based upon a grand theft conviction that occurred in 1979. (Id. at p. 494.) "Initially, appellant received a term of probation for the conviction. In 1980 appellant was convicted of robbery with the use of a firearm. Solely on the basis of this robbery conviction, the court revoked appellant's probation previously granted on the grand theft conviction and committed him to state prison"-the basis of the prior prison term enhancement at issue on appeal. (Ibid.) The Harris court held it was therefore error for the trial court not to strike the prison prior enhancement (§ 667.5, former subd. (b)) since the prison term would not have been served but for the unconstitutional conviction for robbery with the use of a firearm. (Harris, at pp. 495-496.) It reasoned, "the constitutional infirmity that rendered invalid the proceedings which resulted in conviction also rendered invalid the proceedings which resulted in revocation of probation based upon the unconstitutional conviction. Appellant would not have served the prior prison term for grand theft were it not for the revocation of his probation based on the robbery conviction." (Id. at p. 496.) Notably, Harris and our court's unpublished opinion People v. Harris, supra, F061768 , in which we concluded it was error for the prosecution to use the constitutionally invalid 1980 robbery conviction for impeachment purposes, do not refer to the case number or include additional details regarding defendant's prior 1980 conviction that was held to be invalid.
On appeal, defendant bears the burden to affirmatively show error and to provide us with an adequate record to review any issues raised on appeal. (See People v. Chubbuck (2019) 43 Cal.App.5th 1, 13; accord, People v Sullivan (2007) 151 Cal.App.4th 524, 549 ["'Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant's burden to affirmatively demonstrate error.' [Citation.] '"We must indulge every presumption to uphold a judgment, and it is defendant's burden on appeal to affirmatively demonstrate error-it will not be presumed. [Citation.]" [Citations.]' [Citation.] [D]efendant ... bears the burden to provide a record on appeal which affirmatively shows that there was an error below, and any uncertainty in the record must be resolved against the defendant"].) With this fundamental precept in mind, we cannot conclude defendant has met his burden and, thus, we must reject his contention on appeal.
Here, while defendant has provided us citations to previous cases in which our court referenced a 1980 conviction that was declared unconstitutional, defendant has failed to provide evidence the convictions referenced in those opinions are the same as that upon which the denial of his Proposition 47 petition was based. Notably, in the present matter defendant admitted the prior conviction allegation related to the 1980 robbery and kidnapping convictions during his plea in 2006-over a decade and a half after our opinion in Harris, related to the prohibition against use of the unconstitutional prior conviction, issued. There is no evidence a challenge to this prior conviction allegation in this case was ever raised at any time. (See Curl v. Superior Court (1990) 51 Cal.3d 1292, 1303 [holding prior conviction is presumptively valid and defendant "bore the burden of proving its constitutional invalidity below"].) Indeed, during the proceedings on defendant's Proposition 47 petition, defense counsel and the prosecutor agreed defendant's 1980 conviction for kidnapping for robbery barred defendant from relief. And the court affirmed it had before it the change of plea form showing "those priors were admitted."
Initially, we note appeal of the order denying relief sought pursuant to Proposition 47 is authorized by subdivision (b) of section 1237 as an order made after judgment, affecting the substantial rights of the defendant. Accordingly, we are limited to reviewing the decision to deny relief under Proposition 47. To convert that limited grant of jurisdiction to permit appellate review of the original judgment would essentially permit a belated motion to vacate that judgment, thereby violating the proscription against an appeal that "'would merely bypass or duplicate appeal from the judgment itself.' [Citation.]" (People v. Totari (2002) 28 Cal.4th 876, 882.)
And, even if defendant's attempt to now collaterally attack this prior conviction allegation for the first time on appeal were permitted, defendant has failed to provide us with an adequate record to conclude the "super strike" conviction, which the court declared rendered defendant ineligible for relief, is the same conviction referenced in our other opinions that was declared constitutionally infirm nor did he provide such a record below. (See People v. Romanowski, supra, 2 Cal.5th at p. 916 ["The ultimate burden of proving section 1170.18 eligibility lies with the petitioner"].) Accordingly, he has failed to overcome the presumption that the trial court's order denying his petition for relief under Proposition 47 is correct and we must affirm.
DISPOSITION
The order denying defendant's petition for resentencing is affirmed.
WE CONCUR: DETJEN, Acting P. J. SMITH, J.